By Linda McKay-Panos
Reposted with permission from LawNow 42-3 Jan-Feb 2018
Alberta will be amending its Alberta Human Rights Act RSA 2000, c A-25.5 (“Act”), to expand protections for age discrimination and include improved program protections. Bill 23, which introduced amendments to the Act, was passed on November 14, 2017. These amendments were scheduled to come into force on January 1, 2018. The changes were prompted by a Charter challenge by elder advocate Ruth Adria, who argued that the exclusion of protections against age discrimination in the areas of services available to the public and tenancies (in sections 4 and 5 of the Act) violated her Charter equality rights. In early 2017, the Alberta government agreed to a court order that required age discrimination to be added to the Act by January 2018.
The Alberta government then undertook consultations on the issue of how the amendments might affect adults-only condominiums, cooperatives and rental apartments (I attended one of the consultation meetings on behalf of Alberta Civil Liberties Research Centre). Bill 23 attempts to provide a compromise to these concerns by providing some exceptions to the new protections against age discrimination in these areas. In addition, to address some other expressed concerns, the Act will add a new section 10.1, which will protect policies and programs aimed at improving or ameliorating some situations.
“Age” is still defined in the Act as being 18 years of age or older, which means that people under 18 will still not to be protected from age discrimination (although they can be protected from discrimination on other grounds).
Bill 23 adds “age” as a protected ground to section 4 of the Act, which prohibits discrimination in the area of goods, services, accommodations or facilities that are customarily available to the public. By virtue of a legal decision (Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183), section 4 also applies to condominiums. Age is also added as a protected ground to section 5, which prohibits discrimination in the area of tenancies (commercial and self-contained dwelling units) and mobile home sites. As of January 1, 2018, the Alberta Human Rights Commission can accept complaints of age discrimination in these areas, unless one of the exceptions found in Bill 23 applies.
There are three exceptions in the new provisions that will allow some types of age distinctions to continue without finding there is a violation of the Act. First, new section 4.1 would permit benefits for seniors (defined as age 55 or older) and minors (those under 18) to continue. “Benefits” means preferential access, terms, conditions or treatment is respect of goods, services, accommodation or facilities but “does not include a minimum age for occupancy or accommodation”. These sections are intended to protect service providers who give special rates to minors or seniors for items such as transit fares, movie tickets or other discounts at stores.
Second, new subsections 4.2(2) and 5(3) will permit seniors-only housing. Seniors-only (55+) housing will continue in all units reserved for one or more people, at least one of whom is 55. Communities can choose to set an age that is 55 or older. Regulations can also set out additional details (e.g., a concern about live-in caregivers who do not meet the minimum age requirements was expressed at the consultations and the regulations could exempt these individuals).
Third, new subsection 4.2(1) addresses existing age-restricted condominiums and issues in rental accommodation. Subsection 4.2(1) allows minimum age restrictions for condominiums, cooperatives and mobile home sites that currently exist to be given a 15-year transition period, and claims based on age or family status discrimination will not be accepted during this period. The transition period applies to condominiums that are either owner-occupied or rented. During the transition period, these could be changed to seniors-only housing, even though there are people who do not meet the new age restrictions.
Some concerns about the new legislation are discussed by Jennifer Koshan in her blog post “Age discrimination and Ameliorative Program Protections to be Broadened under Alberta Human Rights Act”.
Professor Koshan notes that independent minors between 16 and 18 years of age may not be protected from age discrimination when they are denied rental or other accommodations because of their youth. She points out that Ontario’s human rights legislation clearly protects such independent minors. If it is not clearly set out, youth living independently of their parents may not be protected from age discrimination given the current definition of “age”. She recommends that this issue be clarified by the government.
The Act also includes new section 10.1, which protects ameliorative programs and activities, which are designed to improve the conditions of disadvantaged people. It is interesting to note that Alberta was the only jurisdiction in Canada whose human rights legislation did not provide an exception for ameliorative programs and activities. Section 10.1 requires that the program or policy “achieves or is reasonably likely to achieve” the ameliorative objectives. Professor Koshan hopes that this section will not allow those with reverse discrimination claims or claims of discrimination to defeat those trying to defend genuine ameliorative programs.
The inclusion of “age” as a protected ground in sections 4 and 5 of the Act has created a challenge for the Alberta government in trying to address the concerns of all the stakeholders, including condominium owners and renters who like adult-only buildings. Also, the government had to seek ways to continue with programs aimed at ameliorating some situations. However, in the end, it must be remembered that the original inclusion of “age” was mandated by a Charter case. Alberta’s Government must abide by the supreme law of Canada.